Wendy Lee Kyle v. H.T. Strasburger, Individually and in His Capacity as a Member of the Board of Directors of Fidelity Bank of Texas, and as a Member of Tuition LLCShirley Strasburger, Individually and in Her Capacity as Vice-Chair of the Board of Directors of Fidelity

NUMBER 13-13-00609-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WENDY LEE KYLE, Appellant,
v.
H.T. STRASBURGER, INDIVIDUALLY
AND IN HIS CAPACITY AS A MEMBER
OF THE BOARD OF DIRECTORS OF
FIDELITY BANK OF TEXAS, AND AS
A MEMBER OF TUITION LLC, SHIRLEY
STRASBURGER, INDIVIDUALLY AND IN HER
CAPACITY AS VICE-CHAIR OF THE BOARD
OF DIRECTORS OF FIDELITY BANK OF TEXAS,
AND AS A MEMBER OF TUITION LLC; TERRY
WHITELY, INDVIDUALLY AND IN HIS CAPACITY
AS PRESIDENT AND MEMBER OF THE BOARD
OF DIRECTORS FOR FIDELITY BANK OF TEXAS;
FIDELITY BANK OF TEXAS, A BANK CHARTERED
UNDER THE LAWS OF THE STATE OF TEXAS;
AND TUITION LLC, A LIMITED LIABILITY
CORPORATION ORGANIZED UNDER THE LAWS
OF THE STATE OF TEXAS, Appellees.
On appeal from the 250th District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez1
Appellant, Wendy Kyle, appeals the trial court’s summary judgment in favor of
appellees, which include two financial institutions and the officers of those institutions
(collectively “Fidelity”).2 By five issues, appellant contends that Fidelity failed to (1)
establish entitlement to a no-evidence summary judgment regarding her fraud in a real
estate transaction cause of action (issue one); (2) establish every element of its
affirmative defenses (issues two, three, and four); and (3) negate the reliance element of
her claims for violations of the Texas Finance Code and the Deceptive Trade Practices
Act (“DTPA”) (issue five).3 We affirm.
I. BACKGROUND
On May 24, 2004, appellant’s ex-husband, Mark Kyle, obtained a 1.1 million dollar
home equity loan from Fidelity, a loan which was secured by the couple’s homestead. It
is undisputed that Mark’s employee signed appellant’s name on the loan documents,
including the promissory note, deed of trust, and disclosure statements.4 Fidelity alleges
1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2015 R.S.).
2 Appellees are H.T. Strasburger, individually and in his capacity as chair of the board of directors
of Fidelity Bank of Texas, and as a member of Tuition LLC; Shirley Strasburger, individually and in her
capacity as vice-chair of the board of directors of Fidelity Bank of Texas, and as a member of Tuition LLC;
Terry Whitley, individually and in his capacity as president and member of the board of directors for Fidelity
Bank of Texas; Fidelity Bank of Texas, a bank chartered under the laws of the state of Texas; and Tuition
LLC, a limited liability corporation organized under the laws of the state of Texas.
3 We have renumbered and reorganized appellant’s issues.
4 Whoever signed the documents used appellant’s passport as identification.
2
that appellant consented to her friend signing the document5; however, appellant claims
that she did not consent to the forgery and learned of the signature later. In late 2009,
appellant filed for divorce from Mark. During the divorce proceedings, Mark failed to pay
ad valorem taxes and Fidelity declared the note on the loan in default. Threatened with
foreclosure, attorneys for Mark and appellant attempted to negotiate a forbearance
agreement with Fidelity that would temporarily abate the threatened foreclosure of the
couple’s homestead. Appellant refused to sign a document requiring her to verify that
she had signed the original loan documents. Terry Whitley, Fidelity’s president, testified
that he did not know whether Fidelity was aware that appellant had not signed the original
loan documents.
On March 24, 2011, Fidelity began foreclosure proceedings on the property. The
foreclosure application included Whitley’s affidavit stating that appellant and Mark had
executed the loan agreement. Appellant filed a verified denial in response to the
foreclosure proceedings stating that she had not signed the loan agreement and that she
had not given anyone authority to sign on her behalf. Fidelity began investigating whether
appellant had actually signed the loan documents. However, according to appellant,
Fidelity continued to pursue foreclosure against the couple’s homestead and represented
to others that appellant had executed the home-equity loan documents. Fidelity also “sent
notice of the pending non-judicial foreclosure sale of the [couple’s] homestead to the
Internal Revenue Service,” asserting “that Mark and [appellant] had executed the home-
equity loan and that Fidelity had scheduled the foreclosure sale on August 2, 2011.”
5 Fidelity provided Mark’s testimony that appellant agreed to the loan and allowed her friend to sign
the loan documents. Fidelity also provided as summary judgment evidence, an email dated June 8, 2004,
from appellant to Mark stating, “I asked you for $5,000. of the 1.??? million that we took out of the house
but haven’t had the courtesy of a reply.”
3
On June 2, 2011, pursuant to a Rule 11 agreement with Mark and as part of the
final divorce decree, appellant conveyed her interest in the home to Mark by special
warranty deed, thereby making Mark the sole owner of the home. Fidelity points out that
appellant testified that she signed the Rule 11 agreement and accompanying documents
based on the advice of her attorneys and confirmed that she did not rely on the advice of
anyone else. However, appellant claims that she sold the property because she did not
want to be part of the foreclosure proceeding. The divorce court entered a final judgment
of divorce decreeing that the home was Mark’s sole and separate property and appellant
signed the judgment as “approved and consented as to both form and substance.” On
June 21, 2011, Fidelity nonsuited appellant from the foreclosure proceedings.
On October 13, 2011, Fidelity sold the note and assigned the lien to Tuition LLC,
a corporation formed by the Strasburgers for, according to appellant, “the sole purpose
of holding the note and lien.” Appellant claims that Tuition LLC had been attempting to
collect past-due payments on the home-equity note from her and has instituted
foreclosure proceedings naming her as a party.
On October 3, 2012, appellant filed suit against Fidelity and Mark asserting claims
for fraudulent filing of a financing statement, statutory fraud in a real estate transaction,
securing the execution of a document by deception, common law fraud, negligent
misrepresentation, “aiding and abetting,” fraudulent inducement, and damage to credit.
Appellant sought damages from Fidelity that she claims were sustained as a result of
misrepresentations made by Fidelity that a loan secured by a fraudulent signature was
enforceable. Appellant requested the trial court to declare the loan agreement void and
set aside the transfer of the property to Mark.
4
On March 11, 2013, Fidelity filed its first motion for summary judgment on
traditional and no-evidence grounds challenging all elements of appellant’s causes of
action and claiming the affirmative defense of absolute privilege. On March 13, 2013,
appellant amended her petition adding claims for forfeiture of principal and interest and
declaratory judgment actions requesting that the lien be declared void and that the special
warranty deed be set aside. The trial court granted Fidelity’s motion on May 16, 2013.
Fidelity filed a subsequent motion for summary judgment as to the claims appellant added
in her amended petition arguing that appellant did not have standing and that her suit was
barred by the statute of limitations. The trial court granted the motion without specifying
the grounds and severed appellant’s suit against Fidelity from her claims against Mark.
This appeal followed.6
II. STANDARDS OF REVIEW
A party may move for summary judgment on the ground that no evidence exists of
one or more essential elements of a claim on which the adverse party bears the burden
of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Inds., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). Once the motion is filed, the burden shifts to the nonmovant to produce
evidence raising a genuine issue of material fact on the elements specified in the motion.
TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
A no-evidence summary judgment is properly granted if the respondent does not
bring forth more than a scintilla of probative evidence to raise a genuine issue of material
fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). More than a
6 As this is a transfer case, under the rules of appellate procedure, we are bound by the transferring
court’s precedent. See TEX. R. APP. P. 41.3. Therefore, if we determine that the Austin Court of Appeals
has determined an issue in conflict with our precedent, we will apply that court’s precedent. See id.
5
scintilla of evidence exists when the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” Id. (quoting and citing
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)) (internal quotations omitted).
“A no-evidence summary judgment is essentially a pretrial directed verdict, and we
apply the same legal sufficiency standard in reviewing a no-evidence summary judgment
as we apply in reviewing a directed verdict.” Id. at 750–51. We consider the evidence in
the light most favorable to the non-movant, crediting such evidence if reasonable jurors
could and disregarding all contrary evidence and inferences unless reasonable jurors
could not. Mack Trucks, Inc., 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168
S.W.3d 802, 825, 827 (Tex. 2005)); King Ranch, Inc., 118 S.W.3d at 751 (citing Wal-Mart
Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).
We review the granting of a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100
S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.). “[W]e take as true all
evidence favorable to the non[-]movant, and we indulge every reasonable inference and
resolve any doubts in the non[-]movant’s favor.” Valence Operating Co., 164 S.W.3d at
661.
In a traditional motion for summary judgment, the movant has the burden to
establish that no genuine issue of material fact exists and that he is entitled to judgment
as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing
TEX. R. CIV. P. 166a(c)); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
6
678 (Tex. 1979). A defendant seeking a traditional motion for summary judgment must
either disprove at least one element of each of the plaintiff’s causes of action or plead
and conclusively establish each essential element of any affirmative defense. Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Sanchez v. Matagorda County,
124 S.W.3d 350, 352 (Tex. App.—Corpus Christi 2003, no pet.). When reasonable
people could not differ as to the conclusion to be drawn from the evidence, the matter is
conclusively established. Franks v. Roades, 310 S.W.3d 615, 621 (Tex. App.—Corpus
Christi 2010, no pet.) (citing City of Keller, 168 S.W.3d at 816).
III. FIDELITY’S DEFENSES
By her second issue, appellant contends that the summary judgment was improper
because the statute of limitations does not apply to her claims of declaratory judgment
that the loan is void, and for forfeiture of principal and interest.7
A. Declaratory Judgment that Loan is Void and Forfeiture of Principal and
Interest
Appellant contends that her claims based on a void home-equity loan and for the
return of principal and interest due to the failure of the lender to obtain the consent of
each owner and each owner’s spouse under section 50(a)(6)(A), article XVI of the Texas
Constitution are not subject to any statute of limitations. Specifically, appellant argues
that a violation of section 50(a)(6)(A), i.e., failing to acquire a spouse’s consent,
constitutes an “incurable infirmity,” and the home-equity loan taken out in May 20, 2004
by Mark is void ab initio. Fidelity responds that because section 50(a)(6)(Q)(xi) provides
7 Due to our disposition of this case based on the statute of limitations, we will not be addressing,
as further explained below, appellant’s third, fourth, and fifth issues to the extent that they involve her claims
for declaratory judgment that the loan and deed are void and for forfeiture of principal and interest. See
TEX. R. APP. P. 47.1.
7
a cure for any defects in acquiring a spouse’s consent at the time the lien is created, the
trial court properly concluded that the four-year residual statute of limitations applies to
appellant’s claims for declaratory judgment that the loan is void, declaratory judgment
that the special warranty deed in favor of Mark is void, and for forfeiture of principal and
interest.
In In re Estate of Hardesty, the home equity loan was closed July 23, 2004 and on
June 10, 2011, the appellant, Hardesty, filed his original verified petition and application
for a temporary restraining order in the district court alleging that the home equity loan
did “not comply with section 50(a)(6), Article XVI of the Texas Constitution because the
loan violates section 50(a)(6)(B), Article XVI of the Texas Constitution,’ and sought a
declaration from the district court that the loan and security instrument do not comply with
Section 50(a)(6)(B).” 449 S.W.3d 895, 908 (Tex. App.—Texarkana 2014, no pet.).
Hardesty contended “that a lien made in violation of the Texas Constitution is void, not
voidable, and thus is not subject to any limitations period.” Id. The lien holders responded
that section 50(a)(6)(Q)(x) provided a cure provision; thus, the lien was merely voidable,
not void. Id. at 909. The court of appeals, relying on Priester v. JP Morgan Chase Bank,
N.A., 708 F.3d 667 (5th Cir. 2013) and Williams v. Wachovia Mortgage Corp., 407 S.W.3d
391, 391 (Tex. App.—Dallas 2013, pet. denied), agreed that because section
50(a)(6)(Q)(x) allowed a lien holder to cure a defect under section 50(a)(6)(B), the lien
was merely voidable. 449 S.W.3d at 908. Thus, the Texarkana Court of Appeals held
that because a lien that does not comply with section 50(a)(6)(B) is curable, a plaintiff
seeking a claim based on a violation of that section is bound by the residual four-year
statute of limitations. Id.
8
In Williams, the court of appeals, explained that a violation of section 50(a)(6) can
be cured pursuant to section 50(a)(6)(Q)(x). Williams, 407 S.W.3d at 394–95. The court
concluded that because a violation of section 50(a)(6) merely made the loan voidable and
not void, the residual statute of limitations applies. Id. (“In Texas, when there is no
express limitations period, the residual four-year statute of limitations described in section
16.051 of the Texas Civil Practice and Remedies Code applies.”); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 16.051 (West, Westlaw through 2015 R.S.) (“Every action for
which there is no express limitations period, except an action for the recovery of real
property, must be brought not later than four years after the day the cause of action
accrues.”).
We agree with the reasoning of the courts of appeals in In re Estate of Hardesty
and Williams and the authority cited by those courts that a curable defect under section
50(a)(6) makes a lien voidable and not void ab initio. See In re Estate of Hardesty, 449
S.W.3d at 911; Williams, 407 S.W.3d at 397. And, under section 50(a)(6)(Q)(xi), the
failure to acquire a spouse’s initial consent to a home-equity loan is curable if that spouse
subsequently consents to the lien; in that case, the lien holder does not forfeit all principal
and interest. See TEX. CONST. art. XVI § 50(a)(6)(Q)(xi) (providing that “the lender or any
holder of the note for the extension of credit shall forfeit all principal and interest of the
extension of credit . . . if the lien was not created under a written agreement with the
consent of each owner and each owner’s spouse, unless each owner and each owner’s
spouse who did not initially consent subsequently consents”) (emphasis added).
Because the complained-of defect in this case is curable under section 50(a)(6)(Q)(xi),
the loan at issue was merely voidable and not void. See In re Estate of Hardesty, 449
S.W.3d at 911; Williams, 407 S.W.3d at 395–97; see also Brazzel v. Murray, 481 S.W.2d
9
801, 803 (Tex. 1972) (“A void act is one entirely null within itself, not binding on either
party, and which is not susceptible of ratification or confirmation. . . . A voidable act . . . is
binding until disaffirmed, and . . . may be made finally valid by failure within proper time
to have it annulled, or by subsequent ratification or confirmation.”) (emphasis added);
Oles v. Curl, 65 S.W.3d 129, 131 n.1 (Tex. App.—Amarillo 2001, no pet.) (“Simply put, if
a supposedly void act can be validated then the act cannot actually be void.”).
Therefore, appellant’s argument that the loan is void ab initio fails because it is
premised on her incorrect assumption that a violation of section 50(a)(6) cannot be cured.
Contrary to appellant’s assertions, a violation of section 50(a)(6)(A) can be cured as
explained above. See TEX. CONST. art. XVI §§ 50(a)(6)(Q)(xi); see also Williams, 407
S.W.3d at 397 (explaining that the appellant’s argument that section 50(a)(6)(A)’s consent
requirement cannot be cured was undermined by the Texas Supreme Court’s broad
pronouncement that “section 50(a)(6)(Q)(x) is a cure provision that applies to all of section
50(a) and . . . operates as a cure provision that validates a lien securing a section 50(a)(6)
extension of credit”). We cannot conclude, as appellant argues, that a claim alleging that
a lender failed to acquire a spouse’s consent to a home-equity loan is not subject to a
statute of limitations.8 See id. Instead, we conclude that the residual four-year statute of
limitations applies to appellant’s claim for declaratory judgment that the lien was void and
for forfeiture of principal and interest.
Appellant does not argue, in the alternative, that if the residual four-year statute of
limitations applies, she filed suit within that period.9 Nonetheless, appellant filed her claim
We note that “[t]he Texas Supreme Court has not written on this issue.” In re Estate of Hardesty,
8
449 S.W.3d 895, 910 (Tex. App.—Texarkana 2014, no pet.).
9The loan documents were signed on May 20, 2004. Appellant filed her suit for declaratory
judgment that the loan was void and for forfeiture of principal and interest on October 3, 2012—over eight
10
for declaratory judgment that the loan is void and for forfeiture of principal and interest
eight years after the closing date of the allegedly deficient loan. Thus, appellant’s claim
is barred by the four-year residual statute of limitations. See TEX. CIV. PRAC. & REM. CODE
ANN. § 16.051; In re Estate of Hardesty, 449 S.W.3d at 911; Williams, 407 S.W.3d at 398.
We conclude that Fidelity conclusively established that it was entitled to summary
judgment as a matter of law on those claims because they are barred by the statute of
limitations.10 We overrule appellant’s second issue.11
B. Declaratory Judgment that Special Warranty Deed is Void
In its motion for summary judgment, Fidelity argued, among other things, that the
residual statute of limitations barred appellant’s claim for declaratory judgment that the
special warranty deed is void. On appeal, appellant does not challenge the trial court’s
granting summary judgment on that basis. “If an appellant does not challenge each
possible ground on which summary judgment could have been granted, we must uphold
the summary judgment on the unchallenged ground.” Jarvis v. Rocanville Corp., 298
S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see also John H. Carney &
Associates v. Rosellini, No. 13-13-00368-CV, 2015 WL 328211, at *5 (Tex. App.—Corpus
Christi Jan. 22, 2015, no pet.) (mem. op.). Therefore, because appellant has not
years later.
10 Appellant did not plead the discovery rule in this case. See Woods v. William M. Mercer, Inc.,
769 S.W.2d 515, 518 (Tex. 1988) (“A party seeking to avail itself of the discovery rule must therefore plead
the rule, either in its original petition or in an amended or supplemented petition in response to defendant's
assertion of the defense as a matter in avoidance.”). Moreover, appellant did not argue in her response to
Fidelity’s motion for summary judgment and does not argue on appeal that the discovery rule applies.
11 Having determined that summary judgment was properly granted in favor of Fidelity on
appellant’s claims for declaratory judgment that the loan is void and for forfeiture of principal and interest,
we need not address appellant’s third and fourth issues as to those claims because those issues are not
dispositive. See TEX. R. APP. 47.1. Specifically, appellant argued in her third issue that she has standing
to bring the above-mentioned claims and in her fourth issue appellant argued, among other things, that the
doctrine of judicial estoppel did not bar the above-mentioned claims. See id.
11
challenged the trial court’s grant of summary judgment on the basis that the statute of
limitations barred her claim for declaratory judgment that the special warranty deed is
void, we must affirm the summary judgment on that unchallenged ground. 12 See Jarvis,
298 S.W.3d at 313.
IV. FRAUD IN A REAL ESTATE TRANSACTION
By her first issue, appellant challenges each possible basis for the trial court’s
granting of summary judgment in favor of Fidelity on her claim for fraud in a real estate
transaction.13 Specifically, appellant claims that an issue of material fact exists regarding
each of the elements challenged by Fidelity in its motion for no-evidence summary
judgment and that Fidelity failed to prove as a matter of law that its affirmative defense of
absolute privilege applies in this case.
In its March 11, 2013 motion for summary judgment, Fidelity alleged that it was
entitled to no-evidence summary judgment on appellant’s claims of fraud in a real estate
transaction because there was no evidence that (1) Fidelity made a false representation
of past or existing material fact; (2) the false representation or promise was made in order
to induce appellant to enter into a contract; (3) appellant relied on the false representation
or promise and entered into the transaction; and (4) the reliance caused her injury. See
TEX. BUS. & COM. CODE ANN. § 27.01(a) (West, Westlaw through 2015 R.S.) (setting out
the above-mentioned elements for fraud in a real estate transaction). Thus, in order to
12 Moreover, we need not address appellant’s third issue arguing that she had standing to bring her
claim for declaratory judgment that the special warranty deed is void, her fourth issue arguing that judicial
estoppel did not bar her claim for declaratory judgment that the special warranty deed is void and her fifth
issue to the extent she argues that she provided more than a scintilla of evidence to raise an issue of
genuine fact regarding her claim for declaratory judgment that the deed is void because those issues are
not dispositive of this appeal. See id.
13 On appeal, appellant has not challenged the summary judgment on her other claims of fraudulent
filing of financing statement, securing the execution of a document by deception, common law fraud,
negligent misrepresentation, aiding and abetting, and fraudulent inducement.
12
prevail, appellant had the burden to produce at least a scintilla of evidence showing,
among other things, that a question of fact exists that Fidelity’s statements in its
application for foreclosure were false. See id.; TEX. R. CIV. P. 166a(i); Mack Trucks, Inc.,
206 S.W.3d at 582.
Appellant alleges that when Fidelity filed its application for foreclosure and
Whitley’s affidavit, Fidelity falsely stated the following: (1) the property was secured by a
debt owed by Mark and appellant; (2) Mark and appellant were both obligated to pay the
debt; (3) the debt was secured by a lien created pursuant to Article XVI, section 50(a)(6)
of the Texas Constitution; and (4) Mark and appellant were obligated by the terms of the
home equity loan for 1.1 million dollars.14
Appellant’s argument that Fidelity made false statements in its application for
foreclosure is entirely premised on her claim that the original loan is void. However, as
previously explained, we concluded that the statute of limitations had passed on
appellant’s claim for declaratory judgment that the loan was void. Thus, the loan is not
void as appellant argued in the trial court and on appeal and was merely voidable. And,
“[o]nce the limitations period . . . passed, a voidable [home-equity] lien becomes valid.”
In re Estate of Hardesty, 449 S.W.3d at 910. Here, the home-equity loan became valid
when the four-year limitations period expired.15 See id. Because appellant’s arguments
are entirely premised on an assumption that the loan is void and can be challenged at
14In addition, appellant argues that an issue of material fact exists concerning whether Fidelity
made a false statement because there was evidence that Fidelity failed to disclose that the home equity
loan was invalid after learning that her signature had been forged. However, appellant did not make this
argument in her response to Fidelity’s motion for summary judgment. Therefore, we may not reverse the
judgment on that basis. See TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).
15 This is so even assuming that appellant did not sign the loan documents. See re Estate of
Hardesty, 449 S.W.3d at 910.
13
any time, she has not argued that although the loan is valid, Fidelity’s statements in the
application for foreclosure were false.16 And, given that the loan is valid, we cannot
conclude that a question of fact remains regarding whether Fidelity’s statements were
false.
Accordingly, we conclude that the trial court properly granted summary judgment
on appellant’s claim of fraud in a real estate transaction. We overrule appellant’s first
issue.17
V. FINANCE CODE AND DTPA VIOLATIONS
By her fifth issue, appellant contends that the trial court improperly granted
Fidelity’s summary judgment because she brought forth more than a scintilla of evidence
raising a genuine issue of material fact regarding each challenged element of her claims
under the finance code and the DTPA. Appellant also argues that reliance is not an
element of her claim under the finance code.
Under Chapter 392 of the Texas Finance Code, a debt collector is liable to a
consumer for damages if the debt collector misrepresents the debt’s status to the
consumer in a judicial or governmental proceeding. TEX. FIN. CODE ANN. §§
392.304(a)(8), 392.403 (West, Westlaw through 2015 R.S.). Specifically, section
392.304(a)(8) prohibits a debt collector from “misrepresenting the character, extent, or
amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial
16 Appellant had the burden to explain in her response to appellant’s summary judgment and on
appeal how and why the statements were false. See TEX. R. CIV. P. 166a(i); Mack Trucks, Inc., 206 S.W.3d
at 582 (explaining that burden shifts to non-movant to raise an issue of genuine fact).
17 Because we have determined that one ground for the trial court’s summary judgment was proper
regarding appellant’s claim of fraud in a real estate transaction, we need not address her issue contending
that Fidelity failed to prove as a matter of law that its affirmative defense of absolute privilege applies in this
case. See TEX. R. APP. P. 47.1.
14
or governmental proceeding[.]” Id. Moreover, a violation of chapter 392 is defined as a
deceptive trade practice, which allows for a claim under the DTPA. Id. § 392.404(a)
(West, Westlaw through 2015 R.S.).
Appellant alleges that Fidelity violated section 392.304 by misrepresenting the
debt’s status when it filed its application for foreclosure. Specifically, appellant argues
that Fidelity misrepresented the status of the loan by stating that she was obligated by
the terms of the home-equity loan.
However, Fidelity did not misrepresent the status of the loan because the loan was
in default at the time that Fidelity filed its application for foreclosure. Moreover, because
appellant had not challenged the validity of the loan within the four-year statute of
limitations, the loan’s validity could not be challenged in this cause. So, to the extent
appellant argues that Fidelity falsely stated that she was obligated by the terms of the
home-equity loan, her argument is without merit. Therefore, we conclude that the trial
court properly granted Fidelity’s motion for no-evidence summary judgment on appellant’s
claims for violations of the finance code and the DTPA. We overrule appellant’s fifth
issue.18
VI. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez_
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
24th day of November, 2015.
18 Because we have concluded that summary judgment was proper regarding appellant’s claims
for finance code and DTPA violations, we need not address appellant’s fourth issue claiming that summary
judgment for these claims was improper because judicial estoppel did not apply. See id.
15